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Preliminary Reflections on the History of the Split English Legal Profession and the Fusion Debate (1000-1900 A.D.)

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Preliminary Reflections on the History of the Split English Legal Profession and the Fusion Debate (1000-1900 A.D.) Fordham Law Review Volume 71 Issue 4 Article 7 2003 Alice's Adventures in Wonderland: Preliminary Reflections on the History of the Split English Legal Profession and the Fusion Debate (1000-1900 A.D.) Judith L. Maute Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Judith L. Maute, Alice's Adventures in Wonderland: Preliminary Reflections on the History of the Split English Legal Profession and the Fusion Debate (1000-1900 A.D.), 71 Fordham L. Rev. 1357 (2003). Available at: https://ir.lawnet.fordham.edu/flr/vol71/iss4/7 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. ALICE'S ADVENTURES IN WONDERLAND: PRELIMINARY REFLECTIONS ON THE HISTORY OF THE SPLIT ENGLISH LEGAL PROFESSION AND THE FUSION DEBATE (1000- 1900 A.D.) Judith L. Maute* Alice was beginning to get very tired of sitting by her sister on the bank, and of having nothing to do... So she was considering in her own mind ... whether the pleasure of making a daisy-chain would be worth the trouble of getting up and picking the daisies, when suddenly a White Rabbit with pink eyes ran close by her.... [W]hen the Rabbit actually took a watch out of its waistcoat-pocket, and looked at it, and then hurried on, Alice started to her feet, for it flashed across her mind that she had never before seen a rabbit with either a waistcoat-pocket, or a watch to take out of it, and, burning with curiosity, she ran across the field after it, and was just in time to see it pop down a large rabbit-hole under the hedge. In another moment down went Alice after it, never once considering how in the world she was to get out again. INTRODUCTION As I prepared to leave the States to teach summer school in Oxford, England, Russ Pearce asked me to contribute to this symposium. This, I reasoned, would give focus to my curiosity about the differences between English and American lawyers, would foster connections with Bar Council and The Law Society (the professional organizations that represent the interests of barristers and solicitors), and would give me an academic purpose to use the extraordinary resources of the Bodelian Library.' I agreed, with the understanding * Professor of Law, University of Oklahoma College of Law. I gratefully acknowledge the research assistance of Kencade Babb and Cleta Puckett (J.D. expected, University of Oklahoma College of Law 2004), and Brian Childs (J.D. expected, Suffolk University College of Law, 2004) 1. Lewis Carroll, Alice's Adventures in Wonderland 19-20 (Signet Classic 2000) (1865). 2. The Bodelian Library of Oxford University is "one of the world's greatest libraries," with approximately five and one-half million books in its non-lending collection, including every book published in the United Kingdom since 1610. Welcome to Oxford 11 (Earls Print & Publications 2002); see also Mary Jessup, A 1357 1358 FORDHAM LAW REVIEW [Vol. 71 that there would be little time for anything more than preliminary reflections. In canvassing for a topic, Geoff Hazard suggested I consider the "drift" between barristers and solicitors.3 "Fusion," I soon learned, was the buzzword for the proposed merger of the two branches. And so I went down the rabbit hole, scarcely appreciating the journey that lay ahead. Viewing the British legal system from afar, we Americans tend to paint with a broad brush: wigged and robed barristers litigate in court, while suited solicitors do pretty much everything else. The divided bar appears to provide some benefits over America's mythical unified bar.4 Because barristers have no direct access to clients, their independence of judgment assures professional advocacy free of personal or financial connections with those whose interests are at stake. The cab rank rule, which theoretically requires that the barrister take all comers, even reviled criminal defendants and political despots. This benefits both litigants and the legal system by promising availability of counsel suitable for the case. Barristers' formal regalia symbolically dignify the majesty of the law, and reinforce the advocates' solemn obligations to the court. Solicitors- who are directly engaged by clients-are responsible for selecting and retaining the barrister, avoiding the difficulty American legal consumers have in identifying counsel competent to handle their particular types of problems. On closer examination, it becomes clear that the divided bar was largely the result of historical accident, driven by class distinctions and economic turf protection. Complete separation between the branches was short-lived, occurring in the late eighteenth century; calls for fusion emerged soon thereafter. The larger and economically powerful "lower" branch of solicitors had been responsible for much of the pressure, demanding rights of audience in higher courts. Over the last thirty years, the English government has entered the fray, with Parliament's 1973 Fair Trading Act, the Lord Chancellor's 1989 Green Paper and other advisory reports, and the Office of Fair Trading focusing on competition in the professions. No longer is there a clear division between the branches: qualified solicitors can obtain rights of audience in virtually every court and can be named to the Queen's Council and most judicial offices; barristers may be employed by government offices and solicitor firms. Although some History of Oxfordshire 118 (Phillimore & Co. 1975). 3. E-mail from Geoffrey Hazard (May 21, 2002) (on file with author). John Leubsdorf suggested rich avenues of inquiry, and reference materials. E-mail from John Leubsdorf (June 10, 2002) (on file with author). 4. See generally John P. Heinz & Edward 0. Laumann, Chicago Lawyers: The Social Structure of the Bar (1982) (detailing stratification of the American Legal Profession). 2003] THE SPLIT ENGLISH LEGAL PROFESSION 1359 distinctions remain, formalized barriers are eroding, with continuing demands that the organized bar justify its restrictions. Neither separation nor fusion happened quickly, but resulted from a combination of diverse legal, economic, and political elements. "Fusion" in the scientific sense connotes a state of completion, in which a substance is transformed from solid to a liquid, achieving a composite whole.5 Complete fusion of the British legal profession is unlikely, for there will always remain a need for a small cadre of highly experienced advocates. And yet substantial convergence may be inevitable. Whether that is a good thing remains the subject of spirited debate in England. American lawyers, who have never known a divided bar, may offer some guidance in identifying the ethical issues that lie ahead. This essay briefly addresses the history of how the English legal profession developed two distinct branches: the upper branch of barristers and the lower branch of solicitors. Discussion of the twentieth-century pressures toward fusion will have to wait for another day. I. HISTORY OF THE DIVIDED ENGLISH BAR Americans have little appreciation of antiquity. Our nation's legal history began with colonization and has fewer than four centuries of development. English law, by contrast, is steeped in antiquity, dating back twelve hundred years. The advocate's role-to speak on another's behalf in a formal adversarial context-dates back to ancient Rome, and was transported to England by the Roman conquest, along with subtle distinctions in the form and function served by different types of representatives.6 Serjeants-at-law, predecessors of the barrister branch, date back to the eleventh century.7 Sir Frederick Pollock called the Norman Conquest "a 5. Webster's Third New International Dictionary of the English Language, Unabridged 925 (3d ed. 1986). Fu.sion\ la : the act or process of liquefying or rendering plastic by heat transition of a substance from a solid to a liquid : MELTING (welds accompanied by - are by far the most common-Welding Handbook) b : the quality or state of flowing induced by this process (that degree of heat must be employed which will give perfect - to the glaze-G.R. Porter) 2 : a union by or as if by melting : as a : a merging of diverse elements into a unified whole : SYNTHESIS (opera is the - of five arts into a composite whole ... e : a coalescence into a solid unit .... 6. Herman Cohen, A History of the English Bar' and Attornatus to 1450, at 1-5, 24-25, 531-45 (1929) (identifying Latin distinctions between advocatus, consilium, advocatio and consilium, defensor, professional lawyers, and prolocutor). 7. See Robert R. Pearce, A Guide to the Inns of Court and Chancery 6 (1855) (quoting thirteenth-century Miroir Aux Justices, alluding to an eleventh-century proceeding: "And in full parliament let the accuser, by himself or by a serjeant,prefer his accusation, according as it was done in the time of King Edmond [who reigned 1360 FORDHAM LAW REVIEW [Vol. 71 catastrophe which determines the whole future history of English Law"' and made French the dominant language of law until the latter part of the fifteenth century.9 Medieval records show general recognition of both nominal and functional distinctions between different types of legal representatives."' As early as 1216 courts limited rights of audience to regular advocates. 1 Two distinct branches began to emerge in the late thirteenth century, under the reign of King Edward I.2 A pleading system was established, crafted by a small group of second- and third-generation professional pleaders-the serjeants-at-law. 3 Specially trained in the policy and procedure of courts, countors or serjeants conducted legal arguments.
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